1. This is an appeal brought by the applicant against the decision of the Health and Social Care Professionals Council ("CORU") to cancel his registration as a social worker and prohibit him from applying for restoration to the register for eighteen months. His registration was cancelled following a fitness hearing on charges that he had an inappropriate relationship for several months with a vulnerable patient in his care. The applicant contends that the sanction of cancellation is unduly severe and disproportionate.

2. The appeal has been brought pursuant to s.69 of the Health and Social Care Professionals Act 2005. The applicant gave evidence in the appeal and was cross examined by senior counsel for the respondent. The court was provided with relevant reports and documents which I will summarise presently. The hearing took place in open court.

Factual background

3. On the 19^th September 2022, a complaint was received from the Manager of Social Work Services in Cork University Hospital and Cork University Maternity Hospital in Wilton in Cork. The complaint related to the applicant, a social worker attached to the hospital, and alleged that he had formed an inappropriate relationship with a patient (whom I will refer to as "patient A" or simply "the patient") to whom he provided care while she was an inpatient at the hospital. The patient had been brought into hospital on the 25^th February 2022 acutely unwell. She was admitted to ICU due to ongoing misuse of ibuprofen and codeine. The applicant was allocated as the patient's social worker. The applicant's own notes recorded that she had a history of trauma including experiences growing up of witnessing her father beat her mother. The notes also indicated that she had been raped by a soldier at age 16 during the Bosnian war, and that she felt insecure and vulnerable.

4. The patient was discharged as an inpatient on the 29^th March 2022. Following discharge, she attended the regular outpatient appointments with the wound care team in the hospital. Her last outpatient appointment was the 29^th August 2022. It was at this appointment that she confided in a nurse that the applicant had been visiting her home. The nurse brought this information to the attention of the social work department at the hospital and an investigation began.

5. Matters moved quickly and a screening meeting was held by the hospital with the applicant on the 7^th September 2022. From the outset, he admitted that he had been carrying on a relationship and admitted that he had visited the patient's home three or four times. He could not remember when he first visited the patient, but he said that the first visit involved bringing her forms that needed to be filled out for a housing application. He acknowledged there was no professional purpose for the visit and he said at interview that he had "clearly mentally moved on to this being something a bit different". He said he had asked the patient out for coffee approximately ten times over a six-week period. He described the relationship as "very comfortable, very nice, easy, we just seemed to get on".

6. The applicant described a trip to the beach and the patient writing their names in the sand. He also admitted a trip to his home, and he stated that they kissed twice during the visit, "the first time initiated by me and the second initiated by her". The applicant attended the investigation meeting on his own. Towards the end of the meeting, the applicant is recorded as querying the nature of the problem about his contact with the patient.

7. The social work team leader who interviewed the applicant on the 7^th September 2022 prepared a typed memorandum of the interview. This note is included as part of the second exhibit to the grounding affidavit of Claire O'Cleary, the Chief Executive Officer of CORU. I have re-read the minute of this first meeting, and it seems to me it contains some concerning features which are highlighted in the commentary provided by the author of the minute, Miriam Maher, who was the applicant's social work team leader. While there are concerning aspects, it is also fair to say that the minutes of the interview also identify a number of features that are relevant to mitigation, not least the detailed factual admissions that were made from the outset, the fact that he volunteered additional information that was not included in the original report from the patient, the fact he voluntarily handed over texts and WhatsApp messages, and the fact that he disclosed that the patient had asked him for money on at least two occasions and that he had given her money for groceries and dental bills.

8. The applicant volunteered that in the weekend of the 19^th/20^th August 2022 the patient had asked him for a loan of €830 and he had given her €200. On this weekend he is recorded as saying he called to her house at around 6pm on the Friday night and stayed until 1am. The note records that the applicant and the patient discussed how the relationship might develop. According to the notes of the interview, the applicant made comments such as "it made me feel good" but later said "but now I wonder if I have been played". He stated that there were multiple texts and emails between himself and the patient which he would be prepared to hand over. He sent photographs to the patient of himself and his daughter and stated that their conversations were in the context of adults divulging personal information. At the end of the interview the applicant apologised for his actions and said that he realised he could lose his licence over the matter, and he became emotional.

9. The applicant was provided with a copy of the minutes of the interview. By email of the 29^th September 2022 the applicant acknowledged receipt of the minutes and indicated that there were a number of inaccuracies but they may not be very significant. He referred to his diagnosis of autism spectrum disorder (ASD) and queried whether this would be addressed in the process. He referred to the significant number of texts between himself and the patient and he made these available to the investigation.

10. On the 18^th October 2022, the applicant's solicitors provided a written response. I have re-read that document as I think it is important. The applicant outlined his professional background. He qualified as a social worker in 1998. He has been employed as a social worker with Cork University Hospital since 2001. He confirmed that he was currently on suspended leave from his employment pending a Trust in Care investigation arising from the allegations made. He disputed several of the comments attributed to the patient in her initial report. However, he accepted in this written response that he called to the patient's home in or about the end of May/early June 2022 for the purpose of following up with the patient in respect of paperwork. He says he had a cup of coffee with the patient on this occasion on her invitation. On that occasion the patient had contacted him and asked him to call. He referred to his diagnosis of ASD and said: "Perhaps as a feature of ASD I have a difficulty with saying no. I worried that if I refused, [the patient] might feel that she was not worth my time. This was a genuine error that I made."

11. According to the applicant's written document, following that first visit he met with the patient on four occasions. He said the allegation that he attended the patient's home up to 20 times was a gross exaggeration. He accepted that after the visit to the patient's home in late May/early June he did allow a personal relationship to develop with the patient. He says the relationship was reciprocal and the patient asked on occasion that he would visit her and provide her with lifts. The applicant stated that with hindsight, he accepted that allowing the friendship to develop was irresponsible. However, in his view at the time, the contact was well meaning and reciprocal.

12. The applicant's written response goes on to refer to the applicant's diagnosis with autism spectrum disorder. It reads as follows:

"I do not seek to abdicate my responsibility in this matter. I do wish to provide some context. I feel that my lack of insight as to professional boundaries in the post-care period was influenced by my own medical background.

I received a diagnosis of ASD (autism spectrum disorder) in December 2021. I was reviewed by a clinical psychologist in December 2021 and outlined a long history of difficulties of sleep difficulties, anxiety and distractibility. Dr. O'Halloran noted that I showed difficulties associated with communication and adjusting my behaviour to different social settings. I feel these issues may have contributed to a lack of appreciation as to the risks of allowing a personal relationship develop with [patient A].

I have been advised that I would benefit from a referral to Aspect service, which provides support to adults who have been diagnosed with Asperger Syndrome and Autism Spectrum Disorder. I intend to follow up in respect of seeking that referral.

I do not believe that ASD adversely impacts my practice but clearly, I ought to have spoken with my team leader and sought feedback and support, particularly on the issue of personal boundaries in this instance.

I am committed to my role as a social worker and while I adamantly dispute the nature of the relationship as indicated in the complaint, I accept that I should not have attended [the patient's] home even for the purposes of facilitating an application process. With the benefit of personal reflection, hindsight (sic) I assure the committee that I have no further contact with [the applicant] nor would I ever allow a personal friendship to develop with a service user or former service user in the future".

The disciplinary process and misconduct charges

13. On the 23^rd November 2022 the Preliminary Proceedings Committee referred the complaint to the Professional Conduct Committee (PCC) for an enquiry on the grounds of professional misconduct and poor professional performance. The enquiry was heard on the 6^th and 7^th December 2023 in private. The applicant was present and was legally represented by solicitor and counsel. The allegations contained in the notes of enquiry were as follows:

"That you, being a registered social worker, whilst employed in the medical social work department of Cork University Hospital ('CUH'), Wilton, Cork:

1. Having provided social work services to [patient A] during her admission to CUH, used your professional position to form a relationship of a sexual and/or inappropriate and/or emotional nature with patient A, when you;

(a) Between on or around 29^th March 2022 and on or around 5^th September 2022, visited patient A in her home on four or more occasions; and/or

(b) Between or around 29^th March 2022 and on or around 5^th September 2022, invited patient A for coffee and/or to the cinema and/or to dinner; and/or

(c) On one or more occasions between on or around 29^th March 2022 and on or around 5^th September 2022, communicated with patient A by means of text message and/or telephone calls and or by using Whatsapp mobile application and/or by using the Viber mobile application;

(d) On or around 20^th July 2022, drove patient A to the beach near your home and/or went for a walk on the beach with patient A; and/or

(e) On or around 20^th July 2022, brought patient A home and/or kissed patient A; and/or

(f) On an unidentified date between on or around 25^th July 2022 and/or around 19 August 2022 gave patient A an unspecified sum of money".

14. In passing, it should be noted that the Notice of Inquiry contains no charge alleging that the applicant deliberately concealed or covered up the inappropriate relationship. I will come back to the relevance of this later.

15. At the outset of the enquiry, counsel for the applicant made admissions on her client's behalf concerning the allegations of fact contained in the Notice of Inquiry. It was also admitted that those facts amounted to both professional misconduct and poor professional performance.

16. On completion of the enquiry, the PCC submitted a report dated the 8^th January 2024 to the respondent, recommending that the applicant's registration be cancelled, and that the respondent be prohibited from applying for restoration to the register for eighteen months. I will return presently to the reasons given by the PCC for recommending that sanction.

17. The respondent Council then held a meeting on the 26^th April 2024 to consider the report from the PCC. The meeting was held pursuant to s. 66(1) of the Health and Social Care Professionals Act 2005 as amended. Having considered the report of the PCC and the evidence and material before it, and having heard submissions from the parties, the respondent concluded that it:

"Believes that this is a very serious case and is firmly of the opinion that cancellation of registration is the only sanction that will sufficiently protect the public, uphold the standards of the profession and maintain public confidence in the profession and its regulations."

Legislative framework

18. Section 63 of the 2005 Act provides that on completion of an inquiry, the PCC shall make a report of the inquiry and its findings to Council. It is the practice at the conclusion of the report, in cases where findings of misconduct are made, for the PCC to include recommendations on sanction. While the PPC makes a recommendation as to the appropriate sanction, it is ultimately the role of the Council pursuant to s. 66 and 67 of the Act to impose sanction and to direct that the sanction be notified to the registration board of the designated professional in question.

19. Section 69(1) provides that "a registrant affected by a direction to impose a disciplinary sanction may apply to the court for an order cancelling the direction". When hearing any such application the court can, in accordance with s. 69(4)(a) "make any order that it considers appropriate, including an order cancelling, confirming or modifying the direction".

This is the section that confers the applicant's right to appeal the sanction to the High Court.

Legal principles on sanction

20. Finlay P. in Medical Council v. Murphy (unreported High Court 29^th June 1994) set out four principles relevant to the imposition of sanction in the context of regulatory proceedings. Those matters are first, the sanction must reflect the serious view that must be taken of the nature and extent of the misconduct concerned in order that the registrant be deterred from engaging in similar misconduct in the future. Second, the sanction should be of an order which makes clear to other members of the profession, the gravity of the misconduct concerned. Third, the sanction must ensure the protection of the public. Fourth, the court should consider whether it is possible to afford leniency to the registrant in the particular circumstances of the case.

21. The principles in Murphy have been cited with approval in a long number of cases including the decision of Charleton J. in Hermann v. Medical Council [2010] IEHC 414, Kelly P. in Law Society v. D'Alton [2019] IEHC 177 and two recent decisions of Barniville P. in Law Society v. Walsh [2023] IEHC 165 and Law Society v. Corrigan [2023] IEHC 389. Moreover, the respondent has published a guidance on sanctions which enunciate the applicable principles in accordance with the case law.

Doctrine of curial deference

22. I accept the submission of the respondent that whilst s. 69(4) of the 2005 Act provides the High Court with a broad power to cancel the direction of the respondent, this power is to be exercised while affording curial deference to the decision of the respondent. The level of deference should be considered in the context of the statutory framework provided for under the Act. The integrity of the social worker profession, the competency of social workers who practice in this jurisdiction and the maintenance of public confidence in the social worker profession is vested primarily in the respondent. It is the respondent's obligation to protect the public and to ensure that social workers who are on the register are of a high standard and are individuals in respect of whom the public can have confidence. It is therefore the respondent's obligation to protect the public, maintain standards and also public confidence in the profession as a whole.

23. In Hermann the High Court considered the appropriateness of a sanction imposed by the Medical Council on a doctor. Charleton J. stated the following:

"because of the relatively greater experience of the Medical Council in imposing sanctions, its knowledge as to relevant precedents and the expert nature of the task undertaken, the High Court, on an appeal as to sanction, should treat the decisions of the Medical Council with respect. An independent view should be taken as to what ought to be done. Where an error has been made in the context of a sanction which is otherwise appropriate, then it should be corrected. If, however, the level of sanction is one which is justified by the material before the Medical Council, then the Court would need to find a specific reason for altering it on the evidence presented on the appeal." (emphasis added)

24. In Dowling v. An Bord Altranais [2017] IEHC 62 Ní Raifeartaigh J. stated at para. 66:

"I would consider it important to give considerable weight to the views of the Board and to depart from its views only if those were clearly disproportionate or had been arrived at in a manner which was not legally sound."

25. In Veterinary Council of Ireland v. Brennan [2020] IEHC 655 Irvine P. stated the following in the context of an application to confirm a sanction:

"In deciding whether or not to confirm the sanction decided upon by the Council (or indeed to make any other order, such as remitting the decision to the Council for reconsideration), I must bear in mind that the Council has a large amount of specific knowledge at its disposal, knowledge which the Court does not, and could not, have access to. For example, the Council is best placed to advise on whether misconduct is on the serious end of the scale, having the benefit of knowing what other types of misconduct are routinely dealt with in disciplinary processes. The Council also has industry and profession-specific knowledge which the Court does not, and these are all factors which may reasonably influence the assessment of a sanction, based on the seriousness of the misconduct found proven. In other words, the Court should afford some degree of deference to the Council when it comes to considering whether or not to confirm a sanction that it has proposed..."

26. It is appropriate to note, however, that Irvine P. qualified her observations above as follows:

"On the other hand, there are areas in which the Council may conceivably err, and which are within the Court's specific expertise to assess. These include, for example, the proper approach to mitigation and the question of causality between circumstances of personal hardship and professional misconduct. There is, therefore, a balancing act to be achieved by the Court - in recognising that some aspects of a decision should be guided by matters within the specific and specialised knowledge of the Council and some aspects which may call for correction by the Court where the Council has erred."

27. In my own judgment in McCartney v. Veterinary Council of Ireland [2024] IEHC 411, I stated the following at para. 45:

"In my view, applying the caselaw that I have just referenced, a judge should be slow to interfere with a professional regulator's reasoned view on sanction, particularly in circumstances where the regulator has extensive experience of knowing what other types of misconduct are routinely dealt with in disciplinary processes, and where on the severity scale different types of professional conduct may fall. At the same time, however, it is clear from the authorities that even in a sanction–only appeal, it is necessary for the High Court to form its own view of the case and exercise its own analysis of whatever evidence on sanction is put before it."

28. Having regard to the case law, I accept the submission made by the respondent in the present case that the court should give considerable weight to the views of the respondent and that ordinarily, if the court is minded to depart from the ruling on sanction, a specific reason for doing so would need to be identified.

Reasons of the PCC for recommending cancellation

29. I now turn to consider the reasons given by the Professional Conduct Committee for recommending the sanction of cancellation, and the reasons given in turn by the Council itself for adopting that recommended sanction.

30. The committee members and chairperson carefully considered the issues and formed what appears to have been a clear-cut view that cancellation was the only appropriate outcome. The Committee's reasons for recommending the ultimate sanction were as follows:

"The finding of professional misconduct and poor professional performance reflect wrongdoing of the most serious kind on the part of the [applicant]. His interactions with patient A began when she was an inpatient at Cork University Hospital (CUH) and he was assigned as her social worker. She was highly vulnerable, with a long and troubled history which included traumatic war time experience in the Balkans. She was in a poor state of health on admission. Normally, when patients are discharged from CUH social workers end their involvement, except to follow up briefly on minor matters not involving home visits. However, [the applicant's] professional therapeutic relationship with patient A merged seamlessly into one described as 'sexual' 'inappropriate' and 'emotional'. This began at the end of March 2022, soon after her discharge, and continued up until early September of that year."

31. The PCC referenced the evidence of the expert witness, Mr. Hogan, who drew attention to the significant power imbalance between the applicant and the patient. The expert identified over twenty breaches of the CORU code of conduct and ethics for social workers. These included a failure to respect service user dignity, privacy and autonomy, disregarding patient safety and welfare, breaches of para 3.2(a) of the code which provides that social workers must not harm, abuse or neglect service users, not maintaining boundaries and many others. The Committee noted that the applicant conducted the relationship in relative secrecy, in the sense that whilst the pretext for initial visits to her home was the completion of housing forms, no reference to what the applicant was doing appeared in the hospital records that he was required to keep. The Committee regarded this as a striking aspect of the case, though not one of the allegations were included in the Notice of Inquiry. There was no evidence of the effect of the applicant's conduct on the patient, but the risk of harm was clearly significant in all the circumstances.

32. The Committee also noted that there were mitigating features present. These included that on receipt of the complaint the applicant responded to CORU and admitted what he had done. At the enquiry itself, he admitted all allegations from the outset. He made admissions concerning each charge set out in the Notice of Inquiry. He had co-operated fully in the whole enquiry process. Other than these charges, he had had an unblemished career as a social worker since 1998.

33. The report states that the Committee carefully considered the various matters raised by the applicant in the context of mitigation. It references his diagnosis with ASD "in late 2019". This appears to be an error because, in point of fact, the diagnosis came two years later in December 2021. While that was an error, it does not in my view, in and of itself, undermine the Committee's analysis of the appropriate sanctions.

34. A point of far greater significance was the Committee's decision to discount the applicant's ASD diagnosis, and the report from the psychologist vouching same as something to weigh in the scales to mitigate the sanction that was proposed. While the applicant urged that his ASD condition may have contributed to the offending, the Committee rejected this and found that this view was unsupported by any professional expert opinion. The Committee was critical of the fact that in the intervening period the applicant had not sought further professional help.

35. The PPC's report also emphasises the fact that the applicant did not give evidence or call any witness on his behalf at the Inquiry. Whilst acknowledging that that was his entitlement, and that no adverse influence was to be drawn from choosing not to give evidence, the Committee said that the absence of any evidence from the applicant himself meant that the Committee had no real opportunity to consider the psychological problem described or its relevance to the applicant's wrongdoing. The fact that the applicant chose not to give evidence was also adjudged to be relevant to the Committee's consideration as to a lack of insight on the applicant's part, into the circumstances and seriousness of the offending.

36. Emphasising the poor level of insight shown by the applicant, the Committee focused on his initial response to the CORU investigation, and his response to his manager in CUH when the complaint was initially put to him. In that interview he made references to the relationship in positive terms, with little real awareness of the seriousness of what he was involved in. The report concludes that in the end, the pleas on his behalf, without hearing from him about his understanding of the nature and extent of the wrongdoing (and what he needed to do to address it), left the Committee unconvinced that there was any significant insight there at all. Lack of insight on the part of a professional person previously involved in wrongdoing on the scale admitted by the applicant gave rise to patient safety concerns which must be reflected in the sanction.

37. The report goes on to indicate that the Committee followed a step-wise approach in assessing the appropriate sanction to impose. Starting at the lower end, it considered the possible sanctions in ascending order. Public protection was the paramount consideration, and the sanction would have to send the right message to the applicant and the wider profession as to how seriously the findings were viewed by the Committee.

38. The Committee looked at the possibility of imposing various forms of conditions on the applicant's registration, short of a cancellation order. These included conditions as to supervision, reflective practice, retraining and re-education. The report said the absence of any identifiable insight made it difficult to assume that conditions would be complied with in a manner that would adequately address the problems, namely the applicant's deficiencies as a social worker, his understanding of these deficiencies and the type of conditions required. The Committee understood that the attachment of conditions could never guarantee the outcome hoped for. Nevertheless, it considered that the formulation of effective workable conditions would involve "too much guesswork to be realistic or practicable".

39. Ultimately the Committee concluded that cancellation of the applicant's registration was the appropriate and necessary sanction. It was required in the Committee's view because of the seriousness of the case. The applicant's behaviour was clearly incompatible with being a social worker. The report goes on to state:

"It was persistent over a significant period and involved deliberate and reckless acts of an abusive nature and an inappropriate relationship. The departures from the code of conduct and ethics were serious and extensive. There was a persistent lack of insight."

40. The report concludes by setting out a recommendation that the applicant be prohibited from applying for restoration for a period of eighteen months. This recommendation was arrived at by applying the same principles of sanctioning as were considered for arriving at the conclusion that cancellation was the appropriate sanction.

Sanction hearing before the respondent Council

41. As I have mentioned, the Council convened on 26 April 2024 to consider the question of sanction and hear submissions from both sides. The Council considered the report of the Professional Conduct Committee of 8 January 2024, all the materials before it and the submissions of the parties. In deciding to adopt the sanction as recommended by the PCC, the Council concluded as follows:

"The Council agrees and adopts all of the reasons identified by the Professional Conduct Committee justifying cancellation of registration and prohibiting the registrant from applying for registration for eighteen months.

The Council believes that this is a very serious case and is firmly of the opinion that cancellation of registration is the only sanction that will sufficiently protect the public, uphold the standards of the profession and maintain public confidence in the profession and its regulations.

The Council is satisfied, notwithstanding all of the mitigating factors put forward on behalf of the registrant, that cancellation is proportionate having regard to the seriousness of the conduct, the deliberate abuse of trust by the registrant, the circumstances in which the registrant pursued and attempted to cover up an inappropriate intimate relationship with an extremely vulnerable service user, the registrant's numerous breaches of the code of conduct, the harm caused to a vulnerable service user and the lack of evidence of real insight on the part of the registrant...".

Report of Dr. Maria O'Halloran, Clinical Psychologist

42. Before analysing the reasons given by both the PCC and the Council itself, I think I should at this point reference quite an important document that was before both the Committee and the Council. The report was relied upon by counsel for the applicant, Elaine Finneran BL when urging the Council not to impose the most serious sanction of cancellation. The report was provided by a clinical psychologist in Cork, Dr. Maria O'Halloran and it concerned assessments of the applicant which she carried out over four days on 16^th, 19^th, 22^nd and 23^rd November 2021. The report itself is dated 6 December 2021. The date is of some importance because it pre-dates the applicant's offending.

43. The applicant himself had sought the assessment as he wanted to ascertain and seek clarity about specific difficulties he was experiencing in his life. xxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. The applicant had a long history of sleep difficulties. He described himself as someone who tends to overthink things and worry a lot. In his work situation he described how he constantly struggled with his organisational skills and paperwork and record keeping. He described his main concern as his rigidity and inflexibility in certain situations. He is originally from the United Kingdom but has been living in Cork for most of his adult life. He has two daughters.

44. The psychologist took a detailed history of the applicant's childhood from his mother. I needn't go into these details in great detail. The applicant himself described how he drifted in school and did not achieve his potential. His mother described how the applicant had significant difficulties with his organisational skills. The applicant had some difficulties maintaining eye contact as a child, however this improved as he got older. His father died suddenly when he was fourteen years of age.

45. The psychologist took a detailed developmental history from the applicant himself and also a collateral history from his ex-wife and his mother in four separate interviews in November 2021. The interview was conducted using the diagnostic interview for social communication disorders (DISCO, Wing 2003). The interview listed information about unusual or atypical behaviours, interests and skills which are frequently associated with autism spectrum disorders. The conclusions reached by the psychologist are based on the information gleaned during those interviews. The formulation arrived at was based on DSM 5 criteria, Autism Spectrum Disorder.

46. I won't read out all the psychologist's findings. It seems to me the key findings were as follows:

· The applicant impressed as a pleasant and engaging, but anxious man who gave a detailed history who was not fully aware of his level of anxiety.

· He showed poor pragmatic/social use of language in conversation. The applicant described how he always had difficulties with managing the to and fro of conversation, as he feels insecure and uncertain in contributing to conversation.

· The applicant described how he tends to interrupt others in conversation and add comments that are not relevant. He can become upset if others interrupt him.

· The applicant described that it can be hard for others to follow the contents of his speech. This was observed during the interviews.

· He spoke at length and was observed to be long-winded.

· The applicant finds it hard to pick up on nuance of languages and on jokes. He does not laugh easily.

· The applicant finds it difficult to tolerate physical affection such as others hugging or touching him or indeed someone sitting close to him.

· The applicant described feeling awkward in making and modulating eye contact during conversation.

· Both the applicant's former wife and mother described how the applicant tends not to show subtle facial expression and finds it hard to smile for photographs.

· The psychologist then deals with the applicant's deficits in developing and maintaining relationships and adjusting his behaviour to social contexts. She notes that the applicant developed friendships in each stage of his life and has maintained friendships with a small group of friends from secondary school. The applicant finds it difficult to adjust his behaviour when he feels he is right.

· A collateral history taken from the applicant's relatives identified how his inflexible, forthrightness and argumentative style has resulted in interpersonal difficulties and situations that could have been managed differently.

· His relatives commented how the applicant finds it difficult to take in information as he becomes fixated on his own ideas.

· In the psychologist's opinion the applicant impresses as having significant difficulties adjusting his behaviour to suit different social contexts.

· He can make naïve comments and tends to interrupt others. He finds it hard to take on board others' perspective or opinions and this has caused difficulties in his relationships.

· The applicant had shown highly restricted and fixated interests and ritualised patterns of verbal and non-verbal behaviour. For instance, he would always have several changes of footwear and clothing with him in his car or in his office.

· The applicant also demonstrated a hypo-reactivity to sensory input. He described a high level of hypersensitivity to noise. He hates the sound of washing machines and cannot have a conversation if the TV or radio is on, even at a low volume.

47. In the conclusion section of her report, Dr. O'Halloran noted that the applicant had described a long history of sleep difficulties, anxiety and distractibility. He showed significant difficulties in social communication, as he tends to be long-winded and ask repetitive questions and found the to-ing and fro-ing of conversation difficult. He tends not to initiate social contact and has needed support knowing what to say when texting others. He can be rigid and inflexible when he becomes fixated with a particular issue. He has significant difficulties adjusting his behaviour to different social settings and finds everyday situations such as queuing in supermarkets difficult to manage, as he finds such situations unpredictable. He has difficulties knowing how to manage social and emotional situations and reciprocity. He shows repetitive motor mannerisms and intense interests. He presents with a number of sensory sensitivities that result in him feeling overwhelmed by noise, sensations of clothing and smells.

48. Taking all these matters together, the psychologist concludes that the applicant's early developmental history and current functioning meets criteria of Autism Spectrum Disorder, DSM IV.

49. The psychologist also made a number of recommendations. The applicant would benefit from a referral to ASPECT Service, which provides support to adults who have been diagnosed with Asperger Syndrome and Autism Spectrum Disorder. He will also benefit from individual support to help him both develop his understanding of ASD and how his difficulties with social interaction and social communication have impacted on his life and emotional wellbeing.

50. As I have said, the applicant received that diagnosis in December 2021, approximately four to six months before the offending the subject of the disciplinary charges. In that sense, from the point of view of mitigation, the psychologist's report was in my view potentially very relevant.

51. The applicant's HR records indicate that he disclosed to his line manager that he had been diagnosed with ASD in a supervision meeting held on 4 February 2022. The note indicates that the applicant felt that his diagnosis meant that he needed an office on his own and that he was anxious about this.

52. In the present case it is important to point out there is no suggestion being made by the respondent that, by reason of his diagnosis, the applicant was precluded from working as a social worker.

53. I will now turn to the submissions that were made on the applicant's behalf before the Council. I will spend some time on this because it is relevant to the adequacy of the respondent's reasons for imposing the ultimate sanction.

Submissions made on behalf of the applicant at the sanction hearing

54. I have reviewed the transcripts of the hearings before the PCC and the sanction hearing before the Council. The applicant was represented by Ms. Elaine Finneran BL, and her submissions commence at page 17 of the transcript. The CEO was represented by Mr. J.P. McDowell of Fieldfisher Ireland LLP and his submissions commence at p. 7 of the transcript. Mr. McDowell made additional submissions commencing at p. 27 of the transcript on the respondent's Guidelines on Sanction and on the important question as to the level of insight shown by the registrant.

55. Counsel for the applicant's essential submission was that the recommended sanction of cancellation was disproportionate and unnecessary in the circumstances of the case. Counsel commenced by accepting that this was clearly not a case where a sanction at the lower level of the spectrum would be appropriate. Nonetheless, counsel urged that a sanction short of cancelation would be appropriate. Counsel emphasised a number of factors. First, the applicant had qualified as a social worker in 1998 and had been employed at Cork University Hospital since 2001. Importantly, he had no adverse regulatory disciplinary history. Therefore, he had a 24-year blemish-free career as a social worker prior to the events complained of. Secondly, he had been suspended from practice by Order of the High Court since 14 October 2022. At that point in time, he had already served a year and a half suspension.

56. Thirdly, the applicant had made very clear and wide admissions as to facts from the outset. He also made admissions that the facts admitted amounted to both professional misconduct and poor professional performance. This was not a case where the applicant had sought to shy away from the allegations. Fourth, as soon as the applicant was questioned about the matter, he made admissions. Ms. Finneran suggested this was a "notable feature" of the entire matter. The inquiry that proceeded before the PCC consisted primarily of a consideration of the applicant's own admissions. This was not a case where it was necessary to call either patient A as a witness or indeed the nurse to whom the patient had made the initial report. Moreover, the text messages that came before the Committee were not disclosed by the patient but, rather, came from the applicant himself. All of this displayed a level of cooperation throughout the initial process and throughout the Professional Conduct Committee hearing. A lengthy and expensive inquiry was avoided, thanks to the overall position adopted by the applicant.

57. As to the report from the psychologist, counsel corrected the position that the diagnosis occurred in 2021, not 2019 as had been incorrectly recorded. Counsel indicated that the psychologist's report was not being put forward in any sense to play down or minimise the offending. Rather, it was put before the Council by way of context and, further, as an acknowledgement by the applicant that he had considerable work to do around recognising his professional and appropriate boundaries.

58. Counsel stressed that the question of insight was the cornerstone of her plea in mitigation because the risk to the public was something that lay at the heart of the role of the Council. Counsel urged that the applicant's insight into the wrongdoing should address any concerns the Council had regarding the risk to the public and reassured the Council that that risk was, on the facts, mitigated.

59. The applicant had asked and instructed counsel to apologise, both to patient A and also to the Committee, and to note that this was a reiteration of the apology that he had made to his employer in September 2022. It was urged that the applicant fully appreciated that he had not maintained the high standards of his profession, membership of which he hugely values, both in terms of it being the source of his livelihood and that of his family, but also simply because he loves his job and wants to continue carrying out that job.

60. Counsel disagreed with what the Committee had said regarding the applicant's decision not to give evidence and also disagreed regarding the suggested consequence that the Committee was not in a position to assess his degree of insight into the offending. There was no obligation on the registrant to go into evidence before the committee and secondly, there were materials before the Council that were suggestive of insight. Quoting from a case called Sawati v. General Medical Council [2022] EWHC 283, counsel submitted that the definition of insight was "an acknowledgement, an appreciation of a failing, its magnitude and its consequences for others", and it was urged that the applicant had shown this in his approach to the disciplinary process.

61. Counsel conveyed her client's position that he wished to reassure the Council that this would never happen again. The applicant was very clear from the outset that he should never have visited patient A or commenced a relationship. Importantly, it was indicated that he recognised the patient had particular vulnerabilities and also recognised the inappropriateness of his actions and the breaches of his professional boundaries from the outset. Counsel referenced the respondent's own written guidance (version 29 June 2023), where insight was discussed at para. 4E and onwards.

62. Ms. Finneran BL also outlined the applicant's personal circumstances. These included that he is a 55-year-old gentleman who was separated from his wife, but continues to support her financially. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. This was relevant in terms of the applicant's need to earn a livelihood in his chosen profession into the future.

63. Counsel accepted that one of the lesser sanctions was not realistically in play. Rather, she urged this was a case where a further period of suspension, coupled with the attachment of an appropriate suite of conditions, was sufficient to meet the circumstances of the case, particularly where the applicant had already been suspended at that point for a period of 18 months. Counsel emphasised her client's instruction that he was prepared to engage with whatever conditions the Council might deem appropriate, including by way of supervision, further education, or by way of reflective practice.

64. Counsel expressly disagreed with the PCC's suggestion that consideration of appropriate conditions involved a level of guesswork or uncertainty. She urged that workable conditions could be put in place with the respondent Council to address what the applicant admitted were serious failings, albeit for a registrant who had an otherwise blemish-free career. She concluded by inviting the Council to assist the registrant with as much leniency as possible in the circumstances.

Assessment of the appropriate sanction

65. Erasure from the register or cancellation of registration is the ultimate penalty available to a regulatory authority. A regulatory body will be slow to remove an otherwise competent and useful member of a profession, particularly if a lesser sanction will suffice to protect members of the public and protect the good name of the profession. In my view, the respondent was entitled to conclude that the applicant's conduct was fundamentally incompatible with practise as a social worker. Any social worker who abuses his position by using it to instigate an intimate or sexual relationship with a client must expect, save in exceptional circumstances, that a cancellation order will be in play as a possible sanction. The deliberate exploitation of the immaturity or vulnerability of a client would generally be regarded as sufficiently serious to merit exclusion from the profession. At the same time, however, in each case it is appropriate to place the offending in its proper context. In approaching the question of sanction, the court's initial task is not so much to identify the impact of the aggravating and mitigating factors, but rather to establish firstly the gravity of the present breaches in their correct context and decide where in the overall spectrum of offending the breaches lay.

66. The Professional Conduct Committee regarded the findings of professional misconduct as reflecting "wrongdoing of a most serious kind". Similarly, the respondent viewed the case as being "a very serious case". Nobody could take issue with these conclusions. It is vital that those who aspire to be members of the social worker profession have a clear appreciation of the necessary boundaries and the need not to mix personal desires with professional duties. On the other hand, it is reasonable to point out that, when viewed in their context, the breaches were not at the very top end of the overall spectrum in that it's possible to conceive of far more egregious circumstances, such as where the relationship is with a child or a person with impaired capacity, or involves circumstances of violence or additional abuse, cruelty, degradation, manipulation or depravity. None of these features were present here.

67. In fact, if one lifts out of the equation for a moment that the applicant was engaged as the patient's social worker, there was nothing inherently abusive, criminal, improper or scandalous in the formation of a relationship between the applicant and the woman concerned. There was no significant discrepancy in their respective ages. The patient was not a child and there is no suggestion that she did not have full capacity. While the fact of the applicant's relationship with the patient was seriously inappropriate and involved a power imbalance and was made worse by the fact that she was vulnerable and unwell, his conduct towards the patient was not abusive or predatory in any sense. An analysis of the WhatsApp and text messages shows that, in an overall sense, he was respectful, caring and courteous towards the patient. There is no suggestion from the messages that he demonstrated violence, malice or anything sinister of that nature at any stage. He believed - it appears misguidedly - that his affections for the patient were reciprocal. He disputed the March start date and contended that the relationship started in May. While that shortens the duration of the offending, it doesn't in my view change its character. There was a level of dispute in their respective statements as to the frequency, persistence or reciprocity of his visits, but nothing specific was charged in that regard and the patient did not give evidence. As far as the applicant believed, it was a two-way intimate friendship that lasted some number of months. The papers also indicate that he allowed himself get into a situation where the patient relied on him for lifts and started asking him for large amounts of money.

68. None of this context gets away from the fact that the applicant was guilty of very serious misconduct, not only because he allowed himself to get drawn into an inappropriate relationship with a vulnerable patient, but because he failed to remove himself from the case as soon as it became apparent that a relationship might develop. The applicant was under a clear duty to report his position to his supervisors, which he acknowledged in evidence before me that he had failed to do.

Caselaw on regulatory sanctioning

69. The case law on regulatory sanctions makes clear that when judging the appropriateness of a sanction, a regulatory body should consider and take into account the overarching objective of protecting members of the public, the public interest in maintaining confidence in the profession, punishment of the wrongdoer, the seriousness of the applicant's misconduct and the issue of proportionality (Kelly P. in Law Society v. D'Alton [2019] IEHC 177.)

70. In line with the caselaw presented to me, the task of the sanctioning body will be to choose a sanction which achieves these objectives, whilst bearing in mind the need for a sanction to be fair and proportionate and no more punitive than is necessary.

71. Some of the cases discuss the differences between criminal sentencing and regulatory sanctioning. A fundamental principle of criminal sanctioning is that a sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender. This principle is grounded on the Constitution as well as on the common law (People (DPP) v. M per Denham J. 1994 3 IR 306 at 317). Sanctioning in a professional disciplinary context is somewhat different. Since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of regulatory jurisdiction (Gupta v. General Medical Council [2002] 1 WLR 1699).

72. Nonetheless, while there are important differences between the criminal and regulatory processes, it is generally accepted that in order to arrive at a proportionate sanction, a disciplinary body should take into account a registrant's individual circumstances and mitigation, as well as the gravity of the misconduct, whilst at the same time keeping to the forefront the regulatory objectives already mentioned.

73. A recent decision of the President emphasises the importance of a sanctioning body taking all relevant mitigating factors into account when deciding on sanction. In Law Society v. Corrigan [2023] IEHC 389, Barniville P. reviewed the relevant caselaw including the decision of Kelly P. in D'Alton and then stated the following:

"63. I recently endorsed and applied those principles in the Walsh case (at paras. 48-49).

64. I must determine the appropriate sanction to be imposed on the Solicitor in this case by reference to those guiding principles. Even more fundamentally, however, and as was made clear by Irvine P. in her judgment in the High Court in Doocey (at para. 24), I must have regard to all of the facts which gave rise to the admitted findings of misconduct. In determining the appropriate sanctions, I must take into account and give appropriate weight to all of the factors offered on behalf of the Solicitor by way of mitigation.

65. An example of a mitigating circumstance to be taken into account is the serious and chronic health condition from which the respondent solicitor was suffering in the D'Alton case at the time of the relevant misconduct. It would, of course, be pointless to attempt to identify exhaustively the types of factors which might be taken into account by way of mitigation in any particular case. The range of those factors is endless. I have no doubt, however, that the difficult personal and family circumstances relied on by the Solicitor in this case amounts to a significant mitigating factor which must be taken into account in determining the appropriate sanction to be imposed on the Solicitor.

66. Fourth, misconduct involving dishonesty, such as interfering with or misappropriating client funds will generally, and properly, attract a very serious sanction. This is clear from all of the authorities. It was put most pithily by Kelly P. in D'Alton, referred to earlier, where the President said that the application of the relevant principles on sanctioning "to a case where a solicitor is found guilty of dishonesty or wrongfully taking funds from a client account will almost invariably result in an order that his or her name be struck from the Roll of Solicitors" (at para. 34). However, because of the presence of significant mitigating factors in that case, principally (but not only) the respondent solicitor's serious and chronic ill health at the time of the misconduct, which also involved the taking of client monies and allowing a deficit on the client account, Kelly P. came to the conclusion that the "usual sanction" of a strike off would be disproportionate and inappropriate in the case. Instead, he fashioned a proportionate sanction which would protect the public, maintain the reputation of the solicitors' profession, punish the respondent solicitor and discourage other solicitors from behaving as he had done". (emphasis added)

The principles identified by the President are particularly apt in the present case because of the extent of the mitigating factors present and also because of the presumptively questionable decision of the PCC to disregard the applicant's ASD diagnosis and the psychological difficulties referenced in the psychologist's report. Before considering this point further, I want to consider the adequacy of the reasons given by the respondent Council for imposing cancellation.

Analysis of the respondent's reasons for imposing cancellation

74. In Brennan v. Health Professions Council [2011] EWHC 41 (Admin) the English High Court (Ouseley J.) observed as follows:

"Where the purpose of sanction is to deal with issues other than the primary one of maintaining public safety, and is instead to provide deterrence to others, to maintain confidence in the profession's reputation and standards and in its regulatory processes, the reasoning is particularly important in showing that the sanction is proportionate to the misconduct and for the individual."

75. Brennan concerned the Harlequins Rugby Club "blood gate" scandal that arose from a rugby match in April 2009 between Harlequins RFC and Leinster in the European Rugby Cup. The appellant was the head physiotherapist for Harlequins who played a central role in the scandal. He admitted that he had participated in the fabrication of the blood injury in question, by purchasing fake blood capsules, keeping one in his bag during the match, going onto the pitch to give the blood capsule to the player who was involved in the cheating, instructing him to use it for the benefit of the team, all the time knowing that this was all part of a plan to cheat. He concealed the fabricated injury by examining the player's mouth, and seeing that there was no injury, taking the player to the referee with a view to his being substituted off the pitch for a false blood injury. He photographed the cut lip, prepared untruthful statements for two players to use for the subsequent inquiry, further helped club officials to cover up the attempted cheating, lied to the hearing, and admitted that he had fabricated blood injuries on previous occasions. The appellant accepted that his behaviour was dishonest, and constituted misconduct. The Conduct Committee found proved the allegation that his fitness to practise was impaired. The Committee ruled that the appellant's behaviour was far too serious to result in the imposition of a caution order and that the only appropriate sanction was a striking-off order.

76. The registrant in Brennan appealed the strike-off to the English High Court and Ouseley J. ruled, notwithstanding the clearcut facts, that the decision of the Conduct Committee could not stand and should be quashed and remitted. The court found that the decision to impose a strike-off order was insufficiently reasoned. Ouseley J. said the following at para. 45 of the judgment:

"I accepted Mr. Harris' submission that the Committee has not dealt adequately with the case for Mr. Brennan as to why he should not be struck off. Its reasoning is not legally adequate; it does not enable the informed reader to know what view it took of the important planks in Mr. Brennan's case. I do not know whether it accepted his remorse and apologies, accepted that he now truly saw the error of his way, that is to say had insight into what he had done wrong, and accepted that he was trying to make good the harm he had done to the standing or image of the profession, or whether they thought that he was insincere, or that this would all be ineffective, without striking off, to restore the harm done or to prevent repetition, despite its sincerity. And if the latter, I do not know why it took that view. I accept that it thought that there was a risk of repetition, but whether that was merely the degree of risk it would be present in any case of past misconduct, or whether there was something more to it, I do not know. I do not know why it was thought proportionate to impose the heaviest, and in reality the most punitive sanction, when punishment was not the objective of sanction, and the primary objective of sanctions, the protection of the public, was not at issue." (emphasis added)

77. There are undoubtedly major differences between the facts and context in Brennan and the facts of the present case, not least that the present applicant admitted several counts of poor professional performance, as well as misconduct. Nonetheless, the judgment in Brennan emphasises that where a disciplinary body decides to cancel a person's registration or end their career, clear reasons need to be given as to why the ultimate sanction should be imposed, particularly in the case of a first offence, and why any form of lesser sanction would not meet the case. The reasons may be concisely stated but, generally speaking, should at least address the gist of the defence arguments. It seems to me the reasons given by the respondent in the present case for imposing the heaviest and ultimate sanction are not spelt out in any great detail and, in certain limited respects which I will mention in a moment, are unsatisfactory.

78. The primary reason given in the ruling for imposing cancellation was that the respondent was satisfied, notwithstanding all of the mitigating factors put forward on behalf of the registrant, that cancellation was proportionate having regard to:

"The seriousness of the misconduct, the deliberate abuse of trust by the registrant, the circumstances in which the registrant pursued and attempted to cover up an inappropriate intimate relationship with an extremely vulnerable service user, the registrant's numerous breaches of the code of conduct, the harm caused to a vulnerable service user and the lack of evidence of real insight on the part of the registrant." (emphasis added)

79. As is evident from my summary of counsel for the applicant's submissions, the case made to the Council was measured and realistic, and acknowledged in clearcut terms that the breaches were serious and warranted a sanction at the higher end of the range. Counsel urged nonetheless that the case could be met by an order of suspension with a range of registration conditions, and she specifically indicated her instructions that the applicant would be prepared to engage with whatever conditions the Council might deem appropriate. In the light of counsel's reasoned approach, the tramlines of dispute were clear: would a suspension and conditions be enough? In these circumstances, I think there was an onus on the respondent to at least engage with that submission and spell out, even in brief terms, why a suspension order with conditions would not work or would not be sufficient to meet the case.

80. Whilst brevity in a ruling is to be commended, it can't come at the expense of failing to explain the basis for an important decision. It seems to me that the issues put forward with such clarity by the applicant's counsel including the extensive mitigation factors, were worthy of some level of express treatment or mention.

81. The transcript shows that submissions on sanction were made by Mr. McDowell for the CEO and that cogent points were made as to why the recommended sanction should be adopted. Sometimes, the circumstances of a case are such that the parties' submissions can be taken to infuse the ruling and thereby supply the missing reasons. However, such was the brevity of the ruling here that there was no real discussion or treatment of the important issue as to why, in this registrant's case, cancellation should be preferred over a sanction of suspension with conditions. I take the point that it's not necessary for disciplinary bodies to write lengthy essays dealing with every single submission made by the registrant. However, that's not the point that I am addressing. All told, in the circumstances of the case I think the reasons given by the respondent were quite sparse.

82. Separately, it is noteworthy from the brief ruling given that considerable emphasis was placed upon the suggestion that the applicant attempted to cover up the inappropriate relationship. In the particular circumstances of the case, I think it would have been better, and fairer, if the allegation of a cover-up should have been included and particularised as a separate charge in the Notice of Inquiry. While I accept it was a relevant background consideration that the applicant had failed to record his visits to the patient in the social worker notes, I think that the applicant should have been given proper notice if it was intended to elevate this detail into an allegation on which he was going to be sanctioned. It was acknowledged at the PCC stage that the issue of a deliberate cover-up was not separately charged in the Notice of Inquiry. I do think that if there was going to be such focus on this point, it would have been better had it been separately charged. That way, the applicant would have been fully on notice of the point and his counsel would have been on alert to address the issue in greater detail.

83. In Sheill v. General Medical Council [2008] EWHC 2967 (Admin), Foskett J. was critical of the phraseology of a head of charge alleging, in that case, dishonesty. He said that the head of charge was unspecific about the circumstances in which it was alleged that the medical practitioner had made a false claim. When a false or dishonest claim was made, for example in a document, it would be usual for the document to be identified in the charge, perhaps by date, but certainly by description which showed clearly the source of the allegation. The High Court quashed the panel's findings on the dishonesty charge. The Court noted that serious allegations, such as dishonesty, require precise and well substantiated claims to ensure fairness in disciplinary proceedings. By analogy, I think it can be said that a similar frailty arose in the present case because the allegation of a deliberate cover-up was not particularised into a charge and did not feature in the Notice of Inquiry.

84. However, in making these observations, I do not wish to be taken as indicating that in all cases aggravating factors will require to be separately charged in a Notice of Inquiry. Ordinarily, a disciplinary body will be entitled to some level of flexibility as to how background facts are dealt with. Each case will depend on its own individual facts and circumstances. In the present case, I take the view that this was a somewhat unsatisfactory feature of the impugned ruling, but not one which, on its own, would have justified setting aside the respondent's conclusion, not least because no direct objection on the point appears to have been taken before the respondent.

85. A separate factor listed by the respondent in justifying cancellation was "the harm caused to a vulnerable service user". In point of fact, there was no evidence of actual harm having been caused to the patient by the inappropriate relationship. Undoubtedly, there was a potential risk of harm, but that is something different from a concluded indication that harm was actually caused to the patient. In my view, this aspect of the respondent's ruling was erroneous.

86. Having made these points, it would only be fair to record the clear indication given by the Council in its ruling that it agreed with, and adopted, all of the reasons identified by the Professional Conduct Committee in their ruling when justifying cancellation. Undoubtedly, that enlarges the body of reasons given for the impugned decision. That realisation, however, brings us back to what I think was the more significant error in the respondent's analysis, which flows from the Council adopting the PCC's reasons. The respondent must be taken to have adopted the Committee's view that the applicant's diagnosis of ASD, and the psychological difficulties described by Dr. O'Halloran in her report in the months preceding the offending, were irrelevant to the question of sanction in the applicant's case. In my view, this approach was erroneous and amounted to a failure to take into account important relevant information.

87. I have already outlined in some detail the report from Dr. O'Halloran dated 6th December 2021. The report is now undoubtedly out of date, and I take the point that the applicant failed, for whatever reason, to follow up on the recommendations in the report to take further steps to seek professional help. As a matter of logic, however, I fail to see how that failure rendered the diagnosis and the contents of the report irrelevant to the sanctioning assessment.

88. The applicant made a specific submission before the PCC which they rejected, namely his contention this his condition may have contributed to his bad judgement in embarking upon a relationship with patient A. This submission was rejected on the basis inter alia that "it was unsupported by any professional expert opinion" and that he had taken no steps in the intervening years since he had been diagnosed to seek professional help. In my view, these were not sufficient reasons to justify disregarding altogether the applicant's diagnosis of ASD or the detailed report of the clinical phycologist.

89. Based upon the contents of the report and the conclusions reached by the psychologist, it can't be excluded that the applicant's "difficulties with social interaction and social communication" may have, at the very least, contributed to his extremely ill-judged decision to start a relationship with this patient and later fail to disclose these matters to his supervisors.

90. In my view it was a reasonable inference to draw that the applicant's social and communication difficulties, his demonstrated level of anxiety, poor pragmatic/social use of language in conversation, difficulties managing the "to and fro" of conversation, insecurities in conversation, inability to pick up on nuances of language and jokes, and his occasional difficulties in managing physical affection, may have all contributed to a situation in which the applicant withdrew from group activities and conversation, and essentially became more solidarity and lonely. In my view, a person with all the difficulties and deficits described in the report, and who is in a state of isolation and loneliness, would be more likely to yearn for human contact and connection, and wish to be a person trusted, than a person without such psychological difficulties. In these circumstances, it is reasonable to infer that the applicant's psychological difficulties may have played a role in his disastrous and ill-judged decision to commence a relationship with a patient in his care.

91. While I accept these consequences were not specifically addressed in the report, I don't think it's a major leap or speculative jump to suggest that a person with such difficulties would be less equipped, if an inappropriate relationship did start, to seek help or disengage or approach a supervisor for advice. In addition, the reference in the report to the applicant's tendency in some social contexts to make "naïve comments" may well have been relevant to the adequacy of his response to the allegations and the question whether one should read too much into comments attributed to the applicant at the time of the initial screening interview, which he attended alone without an advisor. The PCC ruling placed a degree of emphasis on the applicant's responses to his managers in CUH at this stage of the process as tending to indicate a lack of insight on the applicant's part and failing to appreciate the seriousness of the offending. Again, I think the psychologist's report and the ASD diagnosis may potentially have had some relevance to these issues and was not something that should have been lightly disregarded.

92. It need hardly be said that none of this justifies or excuses what the applicant did, but in my view the psychologist's reasoning and diagnosis does help to inform the context in which the applicant committed these disciplinary breaches.

Evidence of the applicant in the appeal

93. I am fortified in this view by the sworn evidence given by the applicant in the hearing before me. Of course, this evidence was not available to either the PCC or the respondent Council. Indeed, the PCC decision focused heavily on the applicant's decision not to give evidence at the enquiry stage. In the course of his evidence before me, the applicant stated that from time to time when working in Cork University Hospital he noticed colleagues conversing and having a "back and forth" with one another. He said in evidence that this sometimes made him feel jealous of his colleagues. That struck me as a rather sad situation, suggestive of a person who felt lonely and excluded, and not part of the group.

94. The applicant's case before the respondent, while not offering the diagnosis as an excuse or justification, or as a defence on liability to the charges, was that his condition and symptoms contributed to his extremely poor judgement in starting the whole relationship with the patient. The applicant gave evidence before me that when he started the relationship, he had no intention of being manipulative or abusive towards the patient, and that in fact the opposite was the case. He emphasised that, at all times, he was well intentioned towards the patient. He acknowledged that he completely overstepped acceptable boundaries and also accepted that, by his actions, he had brought the social worker profession into disrepute. He accepted in cross examination that even after his initial visit to the patient's home he had several opportunities to disengage, which he failed to take. He did not disengage until 20 August 2022. The applicant also candidly pointed out in evidence that he had continued to be paid his salary while on suspension, thereby correcting a misimpression I had formed from the papers. This showed that he was concerned to give truthful evidence to the court, even where it didn't necessarily suit his case. I found these aspects of the applicant's evidence to be reasonable and persuasive.

95. There were other aspects of his evidence that I found less impressive. His insistence that his visits to the patient were not deliberate or planned in advance was unreasonable and quite unrealistic. I don't mean by that, that he was untruthful in his evidence because in my view the applicant did his level best to tell the truth and give accurate answers. However, on any realistic appraisal, there was undoubtedly a degree of deliberation and intent involved in his visits to the patient's home, in the sense that he wished and desired to meet her on the various occasions that they met. The applicant was quite hung up on disputing suggestions that he "used his position" or used the housing form as a "pretext" for procuring a meeting with the patient and this rigidity got him into difficulties in cross examination.

96. However, stepping back from matters, I accept the applicant's evidence that he at no stage intended to be abusive, manipulative or disrespectful towards the patient as an individual. I accept his evidence that he recognises that having a relationship with a patient is wholly unacceptable and plainly incompatible with being a social worker. Whilst any court must recognise the risk of a registrant reoffending will always be there, it seems to me that on a fair appraisal of the evidence the applicant stood firm in his insistence that he had insight into his offending and that he firmly believed the behaviour would not be repeated.

97. Importantly, the applicant also said in evidence that, notwithstanding his failure to follow up to date, he was open to getting professional help for his difficulties and furthermore, that he appreciates structure and supervision and would have no difficulty with the idea of further supervision and training into the future. I accept the applicant's evidence in this regard which, as I have said, was not before either the Professional Conduct Committee or the respondent.

98. Overall, the applicant impressed me as a caring and honest individual who is committed to his profession and passionate about the social care needs of his clients. He appears to have a long way to go in terms of addressing his psychological difficulties, and undoubtedly is in need of training and re-education on the need to maintain boundaries and not over-share sensitive information with clients. However, in my view one should be slow to exclude the possibility that these deficits might be addressed by way of suitable conditions.

99. Turning to a consideration of the aggravating factors, a relevant aggravating factor was the fact that the inappropriate relationship involved a vulnerable patient and an obvious power imbalance. In Disciplinary Procedures in the Statutory Professions by Mills et al. (Bloomsbury Professional para. 8.40) the authors state that where the relationship is one that involves a vulnerable person, or is abusive or otherwise unlawful in nature, it is more likely that it will be regarded in a more serious light. Where there is an associated criminal investigation or conviction into the event in question, that, too, may raise the stakes for the registrant concerned. I agree with those points. In the present case, the patient was vulnerable, and the applicant knew this to be the case. However, the relationship was not characterised by any level of additional abuse or impropriety and was not otherwise unlawful in nature. Nor did it have any criminal element or involve any question of a conviction.

100. VL v. General Social Care Council [2008] EWCST 1302 (SW) is an example of a case where there was some vulnerability on the part of the person with whom the relationship was forged, however mitigating factors nonetheless served to prevent the social worker's erasure from the register. The court noted at para. 51 of the judgment that the applicant in that case did not abuse her position of influence as a social worker for her own sexual gratification. Apart from the fact that the applicant was engaged as the patient's social worker, there was nothing inherently scandalous or improper in the formation of a relationship between the patient and the applicant. There was no significant discrepancy in their respective ages and, according to the judgment, neither of them was married. The affection which they generated appeared to have been genuine and sustained. The tribunal ruled at para. 57 that when considering the sanction to be imposed, the mitigating circumstances and the otherwise exemplary behaviour of the social worker could properly be placed in the balance against the seriousness of the misconduct admitted or proved. The tribunal ultimately concluded that in the particular circumstances of the case, the sanction of a removal order was unnecessarily severe and disproportionate.

101. Without straining the point, I think there are some parallels between the two cases. The level of vulnerability of the patient in VL was not as marked as the level of vulnerability in the present case. As against that, the gravity of the offending in VL was of a higher order in that the social worker had been separately guilty of dishonesty and lack of candour in subsequent applications for registration. The applicant had lied and covered up her earlier misconduct and had filed a false application for subsequent registration. None of these features arose in the present case. While I don't want to over-state the comparison because every case, particularly in the regulatory field, will fall to be considered on its own facts, I think it is noteworthy that even though the misconduct was multi-faceted in VL, the Tribunal ultimately quashed the cancellation order on proportionality grounds in light of the ample mitigation in that case.

Conclusions on the question of sanction

102. Having carefully weighed the submissions made by the parties, and having reviewed the relevant reports and documents, I find that applying the legal principles I have endeavoured to identify above, the appropriate sanction to impose in this case is the sanction of a lengthy suspension, coupled with the imposition of appropriate conditions. Such conditions may include a mandatory structure of supervision, reflective practise, retraining and/or re-education. I do not propose at this juncture to be prescriptive about the conditions to be imposed, because I believe these are issues which the respondent in the first instance will be best placed to formulate and determine.

103. Bearing in mind the overarching need to ensure the protection of the public, I will direct that the applicant for the time being will remain suspended from duties, at least until he has completed to the satisfaction of the respondent, effective retraining and re-education, and secondly until he has taken proactive steps to seek help for his psychological difficulties as recommended by Dr. O'Halloran in her report. The applicant confirmed in evidence before me that he was open to taking such steps. This will now give him an opportunity to make good on that indication.

104. For the reasons that I have indicated, I find that the approach taken by both the Professional Conduct Committee and the respondent was flawed in that it failed to assess the level of the applicant's culpability in the context of his own personal circumstances, including his ASD diagnosis and the fact that there was uncontradicted evidence before the court that he suffered from a range of psychological difficulties in the short number of months before the index breaches.

105. In addition, I take the view that the reasons of the Professional Conduct Committee for concluding that the formulation of effective workable conditions "would involve too much guesswork to be realistic or practicable" was unduly dismissive of the applicant's situation and failed to have sufficient regard to the consequences of a cancellation order for someone in the applicant's circumstances, including his personal circumstances and close family members. Moreover, I find that the decision to impose a cancellation order failed to take sufficient account of the ample mitigation factors present in the applicant's case.

106. In my view, there were several unusual features present here which, taken together, render this a sufficiently exceptional case to warrant departing from the generally expected outcome that would ordinarily follow where a social worker engages in an inappropriate relationship with a client or patient. Misconduct of this type will ordinarily involve a sanction at the serious end of the scale up to and including cancellation. The circumstances that warrant a departure in the present case include the following:

(i) Prior to the events complained of, the applicant had a 24 year blemish free career as a social worker.

(ii) He had been employed at Cork University Hospital since 2001 and had no disciplinary charges against his name.

(iii) Outside of the deeply inappropriate context of the fact of the relationship, the relationship was not otherwise abusive, malign, aggressive, violent, criminal or wrongful in any way.

(iv) The applicant has been suspended from practise by order of the High Court since the 14^th October 2022. He has already served a suspension of two years and four months.

(v) The applicant admitted the relationship on the first occasion that the allegation was put to him.

(vi) The next day, he attended an investigation meeting, without a friend or lawyer in attendance, and made significant admissions as to the matters alleged.

(vii) The applicant volunteered additional information and materials which were helpful to the disciplinary prosecution brought against him.

(viii) At the fitness hearing, the applicant made admissions as to the facts alleged and pleaded to the charges in the Notice of Inquiry.

(ix) From the outset, the applicant was remorseful and apologetic.

(x) He had a sufficient understanding of the seriousness of the matter that he feared for his license.

(xi) Senior counsel for the respondent acknowledged, very fairly, that the admissions made by the applicant were of considerable benefit to the CEO's case and obviated the need to call patient A or any other witness as to fact, such as the nurse who took the initial report from the patient.

(xii) A lengthy and expensive fitness enquiry was avoided, thanks to the overall position adopted by the applicant.

(xiii) The applicant accepted that the admitted facts amounted to both professional misconduct and poor professional performance.

(xiv) The applicant was diagnosed with ASD a short number of months before committing the index breaches. A detailed report from a clinical psychologist was provided to the Professional Conduct Committee which demonstrated that the applicant was suffering from a range of significant psychological difficulties and deficits which impacted his ability to communicate with friends, family and colleagues and deal with a range of social contexts.

(xv) The report from the psychologist noted a long history of sleep difficulties, anxiety and distractibility, significant difficulties in social communication, and difficulties adjusting his behaviour to different social settings.

(xvi) For the reasons identified, I find that the Professional Conduct Committee and the respondent erred in principle in effectively rejecting as irrelevant to the question of the appropriate sanction, the applicant's psychological difficulties and the diagnosis of ASD.

(xvii) The reasons given by the respondent for concluding that cancellation was appropriate failed to have sufficient regard to the full extent of the mitigating factors and failed to take into account relevant considerations.

(xviii) I am not persuaded by the reasons given by the Professional Conduct Committee for rejecting as unrealistic or unworkable the option of imposing conditions, in addition to a lengthy suspension order.

(xix) For the reasons stated earlier, I have found that in these limited respects the reasons given by the respondent were flawed and unsatisfactory.

(xx) I am satisfied from the applicant's evidence before me that he has a level of insight into the circumstances of his offending sufficient to render it appropriate that he should be given a further chance. In the course of a robust and fair cross examination by counsel for the respondent, he did not seek to deflect responsibility for his actions, minimise the seriousness of the breaches, or engage in blaming the patient for what he himself had done.

(xxi) I hold that in the particular circumstances of the case a suspension order with substantial additional conditions will sufficiently protect the public, uphold the standards of the social worker profession and maintain public confidence in the profession and its regulation. That is the proportionate order that I propose to make.

Conclusion

107. For these cumulative reasons I hold that the applicant's appeal should be allowed. Notwithstanding the considerable level of deference which I am obliged to give to the respondent's decision and reasoning, I find that this is an appropriate case in which to vary the sanction. I will hear the parties on the precise wording of the conditions to be imposed, the question whether the court's judgment should be redacted or anonymised and also submissions on the final order of the court.

Micheál O'Higgins

Appearances:

The applicant was a litigant in person.

The respondent was represented by Ronan Kennedy SC and Caoimhe Daly BL instructed by Fieldfisher Ireland LLP.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> RS v Health and Social Care Professional Council (Approved) [2025] IEHC 267 (20 February 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC267.html Cite as: [2025] IEHC 267

High Court of Ireland Decisions